Yamaha Corporation of Americav.Black Hills Media, LLC

Patent Trial and Appeal Board

Mar 18, 2015

13207113 (P.T.A.B. Mar. 18, 2015)

Trials@uspto.gov Paper 52
571-272-7822 Entered: March 18, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

YAMAHA CORPORATION OF AMERICA,
Petitioner,

v.

BLACK HILLS MEDIA, LLC,
Patent Owner.

Case IPR2013-00598
Patent 8,230,873 B2

Before BRIAN J. McNAMARA, STACEY G. WHITE, and PETER P. CHEN,
Administrative Patent Judges.

CHEN, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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I. INTRODUCTION
Yamaha Corporation of America (“Petitioner”) filed a Petition requesting
inter partes review of claims 1, 2, 4–13, 15–31, 33–42, and 44–46 of
U.S. Patent No. 8,214,873 B2 (Ex. 1001, “the ’873 patent”). Paper 3 (“Pet.”).
Black Hills Media, LLC (“Patent Owner”) filed a Preliminary Response on
December 26, 2013. Paper 12 (“Prelim. Resp.”). On March 20, 2014, we
instituted an inter partes review for challenged claims 1, 2, 6–13, 15–31, 35–42,
and 44–46 on certain grounds of unpatentability alleged in the Petition. Paper 19
(“Dec. to Inst.”).
After institution of trial, Patent Owner filed a Patent Owner Response (Paper
31, “PO Resp.”), to which Petitioner filed a Reply (Paper 35, “Pet. Reply”). A
consolidated oral hearing for IPR2013-00593, IPR2013-00594, IPR2013-00597,
and IPR2013-00598, each involving the same Petitioner and the same Patent
Owner, was held on October 20, 2014. The transcript of the consolidated hearing
has been entered into the record. Paper 50 (“Tr.”).
The Board has jurisdiction under 35 U.S.C. § 6(c). In this Final Written
Decision, issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73, we
determine Petitioner has shown by a preponderance of the evidence that challenged
claims 1, 2, 6–13, 15–31, 35–42, and 44–46 are unpatentable. Patent Owner’s
Motion to Exclude is dismissed as moot.

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A. Related Proceedings
Petitioner indicates that the ’873 Patent is at issue in Black Hills Media, LLC
v. Yamaha Corp. of America, No. 2:13-cv-006054 (C.D. Cal.). Pet. 2–4. In
addition, Patent Owner has pending cases concerning the ’873 Patent in the United
States District Court for the District of Delaware and the Eastern District of Texas,
and an investigation before the U.S. International Trade Commission, Certain
Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home
Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated
Software, Inv. No. 337-TA-882 (USITC). Supplemental Mandatory Notice (Paper
51), 1–3. The ’873 Patent is subject of three other petitions for inter partes
review.
1
Id.
B. The ’873 Patent
The subject matter of the challenged claims of the ’873 patent relates
generally to a system and method for media sharing between electronic devices, by
using a first device to provide remote control of playing of media items (e.g., songs
or videos) on a second device such as a stereo or television. Ex. 1001, Abstract.
The first device receives a playlist and selects the second device, and a user selects
the media items to be played on the second device, without user input via the
second device. Pet. 2; Prelim. Resp. 6; Ex. 1001, Abstract, 2:28–40, 2:59–68.

1
Cases IPR2014-00723, IPR2014-00766, and IPR2015-00339.
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Figure 1 of the ’873 patent is reproduced below.

Figure 1 depicts an embodiment of the invention wherein a playlist is
communicated from playlist server 10 via Internet 11 to first device 13 or second
device 14. Ex. 1001, 8:51–56. First device 13 may comprise a remote control for
second device 14, which may comprise a music rendering device such as a stereo,
television, or home computer. Id. at 9:8–14, 9:27–32, 9:55–63. Playlist server 10
is in bi-directional communication with Internet 11 as shown by arrow 19. Id. at
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8:65–66. First device 13 and second device 14 are in bi-directional communication
with Internet 11 as shown by arrows 16 and 17, respectively, and first device 13 is
in unidirectional or bi-directional communication with second device 14 as shown
by arrow 18. Id. at 8:66–9:7.
C. Illustrative Claim
Claims 1, 2, 4–13, 15–31, 33–42, and 44–46 are the subject of the Petition.
Claims 1, 17, 23, 25–27, 30, and 46 are independent claims. Independent claim 1
is illustrative and is reproduced as follows.
1. A method for facilitating the presentation of media, the
method comprising:

displaying, on a first device, at least one device identifier
identifying a second device;

receiving user first input selecting the at least one device
identifier;

receiving, on the first device, a playlist, the received playlist
comprising a plurality of media item identifiers;
receiving user second input selecting at least one media item
identifier from the received playlist; and

directing, from the first device, the second device to receive a
media item identified by the at least one media item identifier
from a content server, without user input via the second device.
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D. Prior Art Supporting the Instituted Challenges
The following three prior art references were asserted in the instituted
grounds:
Reference Title Ex. No.
Janik US 2003/0045955 A1
(issued March 6,
2003)
Ex. 1011
Bi US 2002/0087996 A1
(pub. July 4, 2002)
Ex. 1012
Erekson US 6,622,018 B1
(issued Sep. 16, 2003)
Ex. 1013
E. The Instituted Challenges of Unpatentability
The following table summarizes the challenges to patentability on which we
instituted inter partes review.
Reference(s) Basis Claims Challenged
Bi and Erekson § 103(a) 1, 2, 6–12, 15–31, 35–41,
and 44–46
Bi, Erekson, and Janik § 103(a) 13 and 42
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II. ANALYSIS
A. Claim Construction
In an inter partes review, claim terms in an unexpired patent are interpreted
according to their broadest reasonable construction in light of the specification of
the patent in which they appear. 37 C.F.R. § 42.100(b); Office Patent Trial
Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012). Claim terms are
given their ordinary and customary meaning, as would be understood by one of
ordinary skill in the art in the context of the entire disclosure. In re Translogic
Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
In the Decision on Institution, we stated that all claim terms would be given
their ordinary and customary meaning. Dec. 9–10. In its Response, Patent Owner
for the first time argues for a construction of the term “playlist,” asserting that
playlist means, “a list of media items arranged to be played in a sequence.” PO
Resp. 12–16. In IPR2013-00597, involving U.S. Patent No. 8,230,099, which is
related to the ’873 patent (PO Resp. 12; Pet. Reply 3), we construed “playlist” as
“a list of media selections” (Paper 15). See PO Resp. 12. Petitioner argues the
construction of playlist in IPR2014-00597 “is correct and should be adopted here.”
Pet. Reply 3.
The ’873 patent supports the construction, “a list of media selections.” The
’873 specification states that “[t]his playlist is a list of songs containing at least one
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song that the listener would like to hear.” Ex. 1001, 11:25–26. In addition, each of
the eight independent claims (1, 17, 23, 25, 26, 27, 30, and 46) recites a playlist
“comprising a plurality of media item identifiers,” (claims 1, 25–27, 30, 46), or a
playlist “comprising a plurality of song identifiers” (claim 17), or a playlist
including “at least one media item name” (claim 23). Ex. 1001, 16:42–43, 17:46–
47, 18:17–18, 18:40–42, 18:59–61, 19:11–14, 19:45–46, 20:57–58.
The two excerpts of the specification cited by Patent Owner as support for
its proposed construction state that songs from a playlist “may be played in the
order selected, in random order, or in any other desired order.” PO Resp. 14; Ex.
1001, 3:20–24, 11:41–43. As Petitioner contends in its Reply, the cited excerpts
refer to songs selected by the user, and not to the playlist itself. Pet. Reply 4. In
addition, these portions of the ’873 patent expressly provide that songs merely
“may” be played in an order selected, or even that songs may be played “in a
random order.”
The term “sequence,” urged by Patent Owner for its construction, appears
only once in the specification, in an unrelated summary of the detailed description
of the preferred embodiments (“[t]he description sets forth the functions and the
sequence of steps for constructing and operating the invention in connection with
the illustrated embodiments”). Id. at 7:5–8. Patent Owner also cites to excerpts of
the deposition testimony of Petitioner’s expert witness, Dr. V. Michael Bove, Jr.,
whose testimony that a playlist may be played in a “sequence” refers to how a
playlist is played by a media player, rather than to what constitutes a playlist. PO
Resp. 14–15; see Pet. Reply 5; Ex. 2012, 217:1–218:7.
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We are persuaded that the construction proposed by Patent Owner is overly
narrow, unsupported (and indeed, contradicted by the ’873 claims and
specification), and would exclude embodiments described in the specification.
Accordingly, we decline to adopt Patent Owner’s proposed construction, and
construe “playlist” as “a list of media selections.” No other claim terms need
express construction.
B. Level of Ordinary Skill in the Art
Petitioner proposes that the level of ordinary skill in the art is “at least a
bachelor’s degree in computer science or electrical engineering, and at least one
year of practical experience with networked multimedia.” Ex. 1002 ¶ 8. Patent
Owner’s proposal is similar, requiring “a person with a bachelor’s degree in
computer science or electrical engineering and one year of practical experience
with networked media.” Prelim. Resp. 10–11. The parties dispute Petitioner’s use
of the qualifying phrase “at least” in describing the level of education and work
experience. While we disagree with Patent Owner’s argument that “at least” is
“improper because it is open-ended” (PO Resp. 11),
2
we determine that an express
definition of the level of ordinary skill is not required.

2
There is ample authority upholding the usage of “at least” in describing the level
of ordinary skill in the art. See, e.g., Unigene Labs., Inc. v. Apotex, Inc., 655 F.3d.
1352, 1358 (Fed. Cir. 2011); Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d
1324, 1332 (Fed. Cir. 2009). The Board similarly has made determinations
regarding the level of skill in the art without delineating an upper limit on
experience. See, e.g., Liberty Mut. Ins. Co. v. Progressive Cas. Ins. Co.,
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The level of ordinary skill in the art can be reflected in the cited prior art
references. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“the
absence of specific findings on the level of skill in the art does not give rise to
reversible error where the prior art itself reflects an appropriate level and a need for
testimony is not shown.”) (internal quotations omitted); In re GPAC Inc., 57 F.3d
1573, 1579 (Fed. Cir. 1995). Here, neither party has provided a sufficient
explanation as to how their specific proposal regarding the level of ordinary skill
(and in particular the importance of the inclusion or exclusion of “at least”) affects
the analysis in this case. Therefore, we find the level of ordinary skill in the art to
be reflected in the cited references and we determine that no express statement of
the level of ordinary skill in the art is required.
C. Claims 1, 2, 6–12, 15–31, 35–41, and 44–46 – Obvious Over Bi and Erekson
We instituted trial on claims 1, 2, 6–12, 15–31, 35–41, and 44–46 on
Petitioner’s asserted ground of obviousness over Bi and Erekson. Paper 19; see
Pet. 28–44. We have reviewed the Petition, the Patent Owner Response, and
Petitioner’s Reply, as well as the relevant evidence discussed in each of those
papers, and are persuaded, by a preponderance of the evidence, that claims 1, 2, 6–
13, 15–31, 35–41, and 44–46 are unpatentable as obvious over Bi and Erekson.

CBM2012-00010, 2014 WL 869413 (PTAB Feb. 24, 2014); Apple Inc. v. Achates
Reference Publ’g, Inc., IPR2013-00081, 2014 WL 2530789 (PTAB June 2, 2014).
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Bi (Exhibit 1012)
Bi is titled, “Interactive Remote Control of Audio or Video Playback and
Selections.” Petitioner contends Bi discloses a system for an interactive remote
control, which may be wireless, of an audio or playback application running on a
personal computer or other computing platform. Pet. 11; Ex. 1012, Abstract. The
interactive remote control provides various functions, such as playback of current
digital audio or video content, selection of new audio or video content, and
providing lists of content for playback. Ex. 1012 ¶ 7. Figure 2 of Bi is reproduced
below.
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Figure 2 depicts data server 102 that provides digital audio or video data via the
Internet or other network 101 to computing platform 110. Navigator 260 is a
wireless remote control that communicates with computing platform 100 to control
selection of audio or video data. Ex. 1012 ¶ 20. Navigator control manager 154
runs on computing platform 100, and takes user input on navigator 260 and
translates the input 270 into commands and actions for audio or video application
151, and then takes results from actions of audio or video application 151 to
provide user outputs 271, such as updated graphics on navigator 260. Id. ¶ 31.
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Figure 7 of Bi is reproduced below.

Figure 7 is a diagram of the software flow of navigator control manager 154. Ex.
1012 ¶ 31. Steps 188–193 depict the browsing and selection of music utilizing
navigator 260. Pet. 12; Ex. 1012 ¶ 31. In step 188, if there is a browse music
command from navigator 260, then in step 189, navigator control manager 154
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checks if the music to browse is local to computing platform 100. Ex. 1012 ¶ 31.
“Typically, a browse of music is based on such criteria as music track, album,
artist, music genre, and playlists.” Id. ¶ 32. If the music to browse is local, in step
191 navigator control manager 154 sends results of local music browse to
navigator 260. Id. If the music to browse is not local, navigator control manager
154 requests music information from data server 193 and then sends the results to
navigator 260. Id.
Petitioner contends Bi discloses the elements of the claims of the ’873
patent, with the exception of the display of multiple devices for selection and
control, which Petitioner contends is disclosed by Erekson. Pet. 31.
Erekson (Exhibit 1013)
Erekson is titled, “Portable Device Control Console with Wireless
Connection.” Erekson discloses “a system and method for controlling remote
devices over a wireless connection (e.g., using a radio signal).” Ex. 1013, 2:18–19.
In one embodiment, “a portable computer system (e.g., a palmtop or hand-held
computer) having a transceiver is used to control compliant [remote] devices. In a
preferred embodiment, the transceiver and the remote devices are Bluetooth-
enabled devices.” Id. at 2:19–24. Each of the remote devices is shown on a
display device. Id. at 2:27–30.

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Figure 7 of Erekson is reproduced below.

Figure 7 depicts one embodiment of Erekson’s portable computing device 100,
with display 105, input 106 and stylus 90. Three remote devices 610, 620, and 630
are indicated on display 105. Id. at Fig. 7. A user can select one of the remote
devices by touching stylus 90 to display 105, or “may simply touch the screen”
directly. Ex. 1013, 9:3–24, Fig. 7.

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Figure 11 of Erekson is reproduced below.

Figure 11 is a flowchart of the steps in a process for controlling one or more
remote devices. Id. at 10:32–11:49, Fig. 11. Once a device is selected, the
“characteristics and capabilities” of the selected remote device are “linked to
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indications (e.g., icons) on display device.” Id. at 10:47–64. The selected remote
device can be controlled “in some prescribed manner (e.g., turning the device off
or on, raising or lowering a level, etc.) based on the type of device and its
capabilities.” Id. at 8:56–61.
Analysis
In support of this asserted ground of unpatentability, Petitioner provides
explanations of how the subject matter of each claim is disclosed by Bi and
Erekson. Pet. 28–43. For example, on independent claim 1, Petitioner contends
Erekson discloses the limitations reciting the display on a first device of “at least
one device identifier identifying a second device,” and the receipt of user input
selecting the at least one device identifier. Pet. 31–33; Ex. 1013, 2:27–30, 9:11–
17, Fig. 7. Petitioner further contends Bi discloses the limitations of receiving on
the first device, a playlist comprising a plurality of media item identifiers;
receiving second user input selecting at least one media item identifier from the
received playlist; and directing from the first device, the second device to receive a
media item identified by a media item identifier, from a content server, without
user input via the second device. Pet. 28–34; Ex. 1013, Figs, 2, 6, 7; ¶¶ 31–32.
Patent Owner makes several arguments against this combination. First,
Patent Owner asserts there is no motivation to combine Bi and Erekson (PO Resp.
31–36, arguing that Bi “provides no motivation to connect the navigator directly to
the Internet or the data server” (PO Resp. 33, 35)) and “neither the stereo of Bi nor
the remote of Erekson is capable of directly communicating with or receiving
media content from the Internet/content server” (PO Resp. 34–35). As Petitioner
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states, however, the ’873 claims do not recite “direct” communications between the
first device and the content or playlist server or network transceiver, or between
the second device and the content or playlist server or network transceiver. Pet.
Reply 9–11. As Petitioner notes, for the embodiment including a network
transceiver, the ’873 specification discloses that the transceiver “includes any
circuit or device that facilitates connections via a network.” Pet. Reply 10; Ex.
1001, 4:6–10.
Second, Patent Owner argues the combination of Bi and Erekson would be
inoperable, because Erekson’s remote would not be able to control an analog stereo
of Bi. PO Resp. 36–38. Petitioner contends that Patent Owner improperly isolates
Bi and Erekson individually, citing to KSR and also to Randall Manufacturing v.
Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013), and notes that actual, physical
substitution of elements is not required in a determination of obviousness, citing In
re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012). Pet. Reply 11–12. Petitioner
further contends that its expert Dr. Bove “reached the unremarkable conclusion
that it would have been obvious to one of ordinary skill in the art to combine the
features of Bi and Erekson in order to advantageously provide a single remote
control to control various devices that would be used together with the audio
playing system of Bi.” Pet. Reply 8. Petitioner adds:
There is nothing incompatible about providing the remote navigator of Bi
with both Bluetooth control for new devices, which would facilitate remote
control of, for example, a new amplifier having Bluetooth capability, and IR
control that provides for “legacy” devices. . . . Whether a stereo that is used
with the system of Bi is “analog” (i.e., receives an analog audio signal for
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powering speakers) is unrelated to what kind of signal (e.g., IR or Bluetooth)
is used to provide for remote control of that device.

Pet. Reply 13. We agree with Petitioner’s arguments that a person of ordinary skill
in the art would have added Erekson’s improved control of multiple devices to Bi’s
Bluetooth-controlled playback device.
Third, Patent Owner argues that Bi’s navigator does not receive a playlist.
PO Resp. 38–42. We have construed “playlist” to be “a list of media selections.”
See Section II. A. Both Petitioner and Patent Owner have cited to Figure 7 and
paragraphs 31 and 32 of Bi, which disclose that a browse of music may be based
on criteria including playlists, and that the results of a browse of music are sent to
Bi’s navigator 260. Pet. 17–19; PO Resp. 39–41; Pet. Reply 15. At the oral
hearing, Patent Owner’s counsel stated that the results of a browse of music sent to
navigator 260 are “most likely a list of titles that are being sent to the navigator.”
Tr. 72:3–20.
Petitioner also notes that Bi discloses its “interactive remote control provides
various functions, such as playback of current digital audio or video content;
selection of new audio or video content; and providing lists of content for
playback.” Pet. 12; Ex. 1012 ¶ 7 (emphasis added). As Petitioner argues, “Bi
expressly discloses that browsing can be done on the basis of various types of
criteria, including playlists. . . . In order to browse content based upon any of these
criteria, it is apparent that the selected criteria would be displayed; otherwise a
browse of music based upon such criteria could not be done.” Pet. Reply 14–15.
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We agree, and determine that Petitioner has shown that Bi discloses the recited
receipt of a playlist by navigator 260.
Finally, Patent Owner argues that claims 25–29 are not obvious because Bi’s
navigator does not communicate directly with the Internet or data server. PO Resp.
42–43. Petitioner correctly states that the ’873 claims do not recite any such direct
connections. Pet. Reply 9–10.
Accordingly, we are persuaded by a preponderance of the evidence of the
unpatentability of claims 1, 2, 6–12, 15–31, 35–41, and 44–46 as obvious over Bi
and Erekson.
D. Claims 13 and 42: Obvious over Bi, Erekson, and Janik
Petitioner contends dependent claims 13 and 42 are unpatentable under 35
U.S.C. § 103(a) as obvious over Bi, Erekson, and Janik. Pet. 45. Claims 13 and 42
depend from independent claims 1 and 30 and further recite that the second device
receives a plurality of media items, “in an order other than the first order.”
Janik discloses such an out of order, or “shuffle,” functionality. Ex. 1011 ¶
99 (“Some possible functions for user-defined button 124 are . . . shuffle the tracks
in the existing playlist.”). Petitioner’s expert Dr. Bove opines that it would have
been obvious to add the shuffle control of Janik to the audio system of Bi, as doing
so merely would have entailed adding a known feature to a known device to
achieve predictable results. Pet. 45; Pet. Reply 15; Ex. 1002 ¶ 33.
Patent Owner argues Petitioner fails to show a motivation to combine Bi,
Erekson, and Janik. PO Resp. 44. Patent Owner, however, does not overcome
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Petitioner’s argument that the combination simply entails adding well-known
features to a known device to achieve a predictable result. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). We agree with Petitioner’s argument that
adding a well-known shuffle feature as disclosed by Janik to known devices of Bi
and Erekson achieves predictable results. Pet. Reply 15. Therefore, we are
persuaded that the combination is proper.
Patent Owner also asserts Janik fails to disclose elements of independent
claims 1 and 30 that are incorporated in dependent claims 13 and 42, PO Resp. 29–
30. Petitioner, however, has shown that Bi discloses those limitations (Pet. 34, 42),
and contends Janik teaches or suggests the other recited feature of claims 13 and
42, namely, the receipt by a second device (the remote devices of Erekson) of
media items in an “order other than the first order” recited in independent claims 1
and 30. Pet. 45; Pet. Reply 15. We are persuaded by Petitioner’s evidence and
agree with its contentions as to Janik.
In summary, we have reviewed the Petition, the Patent Owner Response, and
Petitioner’s Reply, as well as the relevant evidence discussed in each of those
papers, and are persuaded Petitioner has proven by a preponderance of the
evidence that claims 13 and 42 are obvious over Bi, Erekson, and Janik.
E. Patent Owner’s Motion to Exclude
Patent Owner filed a Motion to Exclude Evidence (Paper 39, “Mot. to Excl.”),
to which Petitioner responded (Paper 44) and on which Patent Owner filed a Reply
(Paper 45, “Reply on Mot. to Excl.”). Patent Owner’s motion seeks to exclude
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Exhibits 1018, 1019, 1020, and 1022. In particular, Patent Owner argues that
Exhibits 1018 and 1019 are hearsay, irrelevant, lacking foundation, and prejudicial
pursuant to Federal Rules of Evidence (“FRE”) 802, 401, 402, and 403. Mot. to
Excl. 1–2. Patent Owner seeks to exclude Exhibit 1020 as untimely, irrelevant and
prejudicial pursuant to FRE 613(b), 401, 403. Id. at 9–10. Patent Owner also
seeks to exclude Exhibit 1022, which was first submitted by Petitioner with its
Reply. Id. at 6–9.
The moving party has the burden of proof to establish that it is entitled to the
requested relief. 37 C.F.R. §§ 42.20(c), 42.62(a). Exhibits 1018 and 1019 were
submitted by Petitioner as extrinsic evidence in support of its proposed
construction of “playlist.” Pet. Reply 7; Reply on Mot. to Excl. 4–5. As stated in
section II. A, our construction of “playlist” is based on intrinsic evidence and we
do not rely upon either Exhibit 1018 or 1019. The motion therefore is dismissed as
moot as to these Exhibits.
Exhibit 1020 was submitted by Petitioner to support its proposal for level of
ordinary skill in the art. Pet. Reply 2–3; Reply on Mot. to Excl. 7–10. As stated in
section II. D, our analysis of the level of ordinary skill in the art is informed by
relevant case law authority and we do not rely on Exhibit 1020. The motion to
exclude is dismissed as moot for this Exhibit.
Exhibit 1022 was submitted by Petitioner with its Reply to support its
arguments for combining Bi and Erekson. Pet. Reply 14; Reply on Mot. to Excl.
6–7. As with the other Exhibits, our analysis on the issue did not rely on Exhibit
1022, and the motion to exclude is dismissed as moot for this exhibit as well.
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III. CONCLUSION
Petitioner has demonstrated by a preponderance of the evidence the
unpatentability of claims 1, 2, 6–12, 15–31, 35–41, and 44–46 of the ’873 patent as
obvious over Bi and Erekson, and of claims 13 and 42 as obvious over Bi,
Erekson, and Janik. Patent Owner’s Motion to Exclude is dismissed as being
moot.
IV. ORDER
In consideration of the foregoing, it is hereby
ORDERED that, based on a preponderance of the evidence, claims 1, 2, 6–
13, 15–31, 35–42, and 44–46 of the ’873 patent are unpatentable; and
FURTHER ORDERED that Patent Owner’s Motion to Exclude is dismissed
as moot.
This is a Final Written Decision. Parties to the proceeding seeking judicial
review of this decision must comply with the notice and service requirements of 37
C.F.R. § 90.2.

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PETITIONER:

David Fehrman
dfehrman@mofo.com

Mehran Arjomand
marjomand@mofo.com

PATENT OWNER:

Lana Gladstein
gladsteinl@pepperlaw.com

Thomas Engellenner
engellennert@pepperlaw.com

Theodosios Thomas
ted.thomas@sceneralabs.com

Christopher Horgan
chris.horgan@concerttechnology.com

Reza Mollaaghababa
mollaaghababar@pepperlaw.com